McCall v Fairfield City Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	McCall v Fairfield City Council [2021] NSWPIC 242
APPLICANT:	Gregory George McCall
RESPONDENT:	Fairfield City Council
MEMBER:	Michael Wright
DATE OF DECISION:	14 July 2021
CATCHWORDS:	WORKERS COMPENSATION- Section 16 of the 1987 Act; deemed date of injury; Stone v Stannard Brothers Launch Services Pty Ltd and Alto Ford Pty Limited v Antaw considered; caution when considering medical records; Mason v Demasi considered; Jones v Dunkel and Manly Council v Byrne inferences considered; Hancock v East Coast Timber Products Pty Ltd and Paric v John Holland (Constructions) Pty Ltd consideration of fair climate for expert opinion; competing causative factors and main contributing factor to aggravation of a disease; AV v AW considered; Held- further employment as a garbage truck operator resulted in aggravation of disease of lumbar spondylosis, and that further employment was the main contributing factor; award for applicant for closed period weekly compensation.
DETERMINATIONS MADE:	The Commission finds: 1. The applicant sustained injury within the meaning of section 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act), such injury being deemed to have happened on 24 September 2019, being an aggravation in the course of the applicant’s employment in the period from 12 March 2018 to 24 September 2019 of the underlying condition of lumbar spondylosis. 2. The applicant had no current capacity for work for the period 24 September 2019 to 20 December 2019 as a result of the aggravation of his pre-existing lumbar spondylosis deemed to have happened on 24 September 2019 as a result of his employment from 12 March 2018 to 24 September 2019. The Commission determines: 1. Respondent to pay the applicant pursuant to section 36(1) of the 1987 Act weekly compensation: a. for the period 24 September 2019 to 30 September 2019 at the rate of $2,177.40 per week, and b. for the period 1 October 2019 to 20 December 2019 at the rate of $2,195.70 per week. 2. Respondent to pay the applicant’s reasonably necessary medical, hospital and related treatment expenses pursuant to section 60 of the 1987 Act as a result of the applicant’s injury, being aggravation of a pre-existing condition of lumbar spondylosis, with a deemed date of injury of 24 September 2019. 3. The Commission notes that the respondent has paid leave entitlements to the applicant in the above periods and credit is to be given to the respondent for payments made.

STATEMENT OF REASONS

BACKGROUND

In an Application to Resolve a Dispute (ARD), Mr Gregory George McCall (the applicant) claimed weekly compensation and related medical and treatment expenses for a disease injury of his back, with a deemed date of injury of 24 September 2019, as a result of the nature and conditions of his employment with Fairfield City Council (the respondent).
In a section 78 notice dated 16 January 2020 the respondent as a licensed self insurer disputed liability for the applicant’s claim on the basis that the applicant had not complied with the legislative requirements for notification of the injury. The respondent stated that the injury was said to have occurred on 12 March 2018 but notice was not given until 13 January 2020. The respondent also disputed that the applicant had submitted his claim within the six-month limitation period prescribed in “the Act”. The respondent relied upon sections 254, 255 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
In a section 78 notice dated 19 February 2020 the applicant relied upon the reasons given in the previous notice and also disputed that injury was sustained in accordance with section 4 of the 1998 Act; and that any medical condition is not causally connected to the injury in the workplace. The respondent also relied upon section 9A or in the alternative that employment was not the main contributing factor to the cause or aggravation of a disease process. The respondent also disputed capacity for work and section 60 expenses. The respondent relied upon the report of Dr Edwards dated 5 February 2020.
In further correspondence dated 8 September 2020 the respondent preferred the opinion of Dr Edwards to the report of Dr Poplawski dated 25 May 2020 on the basis that the opinion of Dr Poplawski was based on a suggestion that the applicant sustained a specific injury on 12 March 2018, such a suggestion being specifically inconsistent with all available evidence.
At the conciliation/arbitration hearing of this matter on 3 June 2021 the respondent did not press the notified dispute in respect of sections 254, 255 and 261 of the 1998 Act in circumstances where the applicant relied upon a deemed date of injury in respect of an allegation of aggravation of a disease process.

PROCEDURE BEFORE THE COMMISSION

At the conciliation/arbitration hearing of this matter on 3 June 2021, the applicant was represented by Ms Goodman of counsel, and the respondent by Mr Mackin, solicitor.

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a) the ARD and attached documents, and
(b) Reply and attached documents.

Oral evidence

There was no application to give oral evidence nor was there an application to cross examine the applicant.

Statements of the applicant

The applicant provided a statement dated 20 August 2020 and also a supplementary statement, identified by the applicant in the ARD as being dated 27 November 2020, which referred to the statement dated 20 August 2020.
In his statement dated 20 August 2020, the applicant stated he commenced employment with the respondent in 1985 and he continues to work in the employ of the respondent. He stated that since 1985 he has worked with the respondent exclusively in the garbage collection division. From 1985 until 1989 he was a garbage bin collector in which he was required to collect bins and empty them into a compactor. He said that from 1989 onwards he has been almost exclusively a garbage truck driver. He said that from 1989 until about 2004 he drove garbage trucks, including compactors and from time to time he would collect bins and also often climb into the truck to retrieve bins from inside the truck.
The applicant stated that from about 2004 onwards he drove a one man garbage truck. He described how, while driving the one man garbage truck and the earlier trucks, he was constantly jarred and jolted. He stated that he was constantly twisting, turning and climbing regularly in and out of the vehicle and this involved twisting of the body with associated stresses and strains. He stated that three times per day he would empty the bin at the tip at Lucas Heights, which had an unsealed surface. The applicant stated that he was more heavily jolted and jarred while driving over that surface.
The applicant stated that over the years he has experienced episodes of low back pain. He recalled lower back pain in the early 1990s. He stated that he was involved in a motor vehicle accident in 1994 while he was driving a garbage truck which was struck by a motorist and the applicant’s vehicle rolled down an embankment. He stated that the main reason that he had a number of months off work following the 1994 accident was that he had post-traumatic stress disorder and he did not recall suffering much if any ongoing pain in relation to his lower back. He also recalled further episodes of lower back pain including in about 1995 in the course of driving his truck and being jolted and jarred. He stated that this was not a single event but took place over a period of time.
The applicant stated that not long after he changed to the one man truck in about 2004 he began to develop gradual onset of lower back pain over a number of weeks and months. He said that this worsened to the point where he experienced strong pain going into both legs to a point below the knees. He stated that he consulted his GP, Dr Nicholas, and was referred to Dr Linklater who administered at least one injection.
The applicant stated that after the injection he had no pain or restriction whatsoever.
The applicant also stated that he continued at his work with the respondent until March 2018. He said that leading up to March 2018 he had very similar symptoms affecting his lower back and pain going down his left leg all the way to his big toe. He stated that he also became aware of a burning sensation at the bottom of both feet. He consulted Dr Nicholas and was again referred to Dr Linklater. He stated that he had a number of injections which were initially reasonably effective but not as effective as the first one had been in 2005.
The applicant stated that his lower back condition did not settle completely and then became worse again. He said that the injury became worse particularly through the middle part of 2019 until he was unable to work from 24 September 2019 and he remained off work until 20 December 2019. In that period he took a combination of sick leave and long service leave.
The applicant stated that in that period of time off work he was referred to Dr Loefler. The applicant said that he consulted Dr Loefler two to three times and Dr Loefler discussed with the applicant the possibility of surgery.
In his supplementary statement, the applicant stated that when he was about to return to work his employer sent him to Dr Foo on 11 December 2019 to get a final clearance before he could return to work. The applicant said that he had a conversation with Dr Foo in which the applicant described his driving conditions and the twisting and turning and constant bouncing up and down in the truck. The applicant said that Dr Foo agreed this was a factor in his back problem and suggested a better quality driving seat and also that he should return to his GP to stop the medication that he was taking so he could return to work. The applicant said that he returned to his GP on 17 December 2019 and had a conversation with his GP about his discussion with Dr Foo. The applicant said that he was uncertain that the back condition was related to his employment because he assumed it was necessary for there to be a particular incident before workers compensation could be claimed. The applicant said that after further discussion on 27 December 2019 with his GP a WorkCover medical certificate dated 27 December 2019 was issued in which he was certified unfit until 20 December 2019.

Dr Nicholas

Dr Nicholas, treating GP, provided a referral letter dated 24 August 2018 and reports dated 4 March 2020 and 15 January 2021 and also a medical certificate dated 27 December 2020.
In his referral letter to Dr Loefler dated 24 August 2018, Dr Nicholas thanked Dr Loefler “for seeing Greg with chronic low back pain”. Dr Nicholas noted that “he is a stoic character and tolerates the pain independently… Recent increase in leg pain right [greater than] leg”. Dr Nicholas also noted “back pain – 15 years, R worst, L also radiculopathy (sciatic pattern)…”
In his report dated 4 March 2020, Dr Nicholas recorded that the applicant had been a patient of his since 14 August 1984. Dr Nicholas listed a number of work-related injuries since commencing at Fairfield City Council.
Dr Nicholas relevantly recorded a Motor Vehicle Accident (MVA) at work on 5 October 1994 with neck strain, lumbar strain, thoracic strain, shoulder strain, rib injuries, emotional shock and PTSD. He recorded that on 4 November 1995 there were lumbar, cervical and shoulder strains (driving older truck).
Dr Nicholas also relevantly recorded a history of severe low back pain and right leg pain on awakening and “L3/4 disc separation. Dr Loefler” on 21 July 2004. Also recorded was “lower back spasm” on 25 November 2013 and lower lumbar strain “during house renovations” on 26 November 2015.
Dr Nicholas also recorded a recent history that on 12 March 2018 the applicant “presented with lower back pain radiating to [right] acute hip and pins and needles down both legs” to his knees. Dr Nicholas noted that the applicant underwent CT scan and MRI and ultrasound “which confirmed gluteal tendinitis and disc lesion at L4/5 (mild to moderate)”.
I note at this point that investigation and treatment injection reports were addressed to Dr Nicholas. These included a CT lumbosacral spine report of Dr Caristo dated 1 May 2018; bilateral L5/S1 facet joint injections report of Dr Linklater dated 5 June 2018. Investigation and treatment injection reports addressed to Dr Linklater included an MRI lumbosacral spine report of Dr Adler dated 9 July 2018; and CT guided right L4 perineural injection report of Dr Dimmick dated 27 July 2018.
The applicant was referred by Dr Nicholas to Dr Loefler who advised nonsurgical management and referral to a neurologist. Dr Nicholas recorded that the applicant’s symptoms gradually settled to a tolerable level and this required a few weeks off work.
Dr Nicholas noted that on 24 September 2019, the applicant “presented with severe [left] lower back pain and [left] leg pain. He could not walk properly and described the pain as 10/10. There was no precipitating incident.”
Dr Nicholas noted that the applicant had globally reduced lumbar movements with preserved reflexes and power in both legs. Dr Nicholas recorded that the applicant was managed with Neurontin, analgesics, physiotherapy and referral to Dr Loefler again.
I note at this point that investigation and treatment injection reports were addressed to Dr Nicholas. These included an MRI lumbar spine report of Dr Anthony dated 27 September 2019; and a left L5 perineural steroid injection report of Dr Linklater dated 28 January 2020. Investigation reports were also addressed to Dr Loefler including a CT guided left L5 perineural steroid injection report of Dr Linklater dated 3 October 2019; and a CT guided left L4/L5 perineural injection report of Dr Sanagdol dated 15 November 2019.
Dr Nicholas recorded that Dr Loefler confirmed left L5 radiculopathy and advised steroid injections and conservative treatment.
Dr Nicholas noted that the applicant was unfit for work from 24 September 2019 to 15 December 2019 and returned to normal duties on 27 December 2019 with no aggravation after a trial of duties.
Dr Nicholas considered that the applicant’s occupation was a substantial contributing factor to his current conditions.
In his report to the applicant’s solicitors dated 15 January 2021, Dr Nicholas reviewed the applicant’s statements dated 20 August 2020 and 27 November 2020.
Dr Nicholas noted that on his file review his record showed no history of lower back pain or sciatica prior to the first MVA at work for Fairfield Council in 1994. He confirmed the previous history hours outlined in his report of 4 March 2020.
Dr Nicholas in his report provided three footnoted references to studies or articles that were identified in the footnotes. However, the studies or articles were not in evidence before me.
Dr Nicholas was of the opinion that “truck driving is a well-established cause of lower back pain by virtue of vibration or road shock, prolonged periods of sitting and compression on the structures in the lower back. (See footnote 1).”
Dr Nicholas also opined that “in addition once Mr McCall experienced his first lower back injury (also at FCC on 5.10.1994) he was even more likely to experience and susceptible to recurrent back pain and progressive degeneration. (footnote 2).”
Dr Nicholas was also of the opinion that “the link between driving and back pain is well-established. Mr McCall had no other contributing injuries prior to his employment. His lower back injuries at work compounded his situation resulting in severe lower back pain and nerve root compression (L5 radiculopathy).”
Dr Nicholas was of the opinion that the applicant’s employment “was the major and most significant contributing factor to his absence from work in late 2019”.
In a certificate of capacity dated 27 December 2019 (the medical certificate), Dr Nicholas diagnosed “lumbar disc injuries (2018 L34 2019 L4 L5 S1)”. The medical certificate noted that the applicant’s stated date of injury was “gradual”. The medical certificate also noted that the applicant was first seen at the practice of Dr Nicholas for this injury on 12 March 2018. Dr Nicholas was also of the opinion in the medical certificate that the injury was consistent with the applicant’s description of the cause.
Dr Nicholas, in response to the question “how is the injury related to work…”, stated “continuous impact from driving heavy vehicle at work (34 years)”. Dr Nicholas noted pre-existing factors which may be relevant were “multiple episodes of back pain at work especially at rubbish tip”.
Dr Nicholas certified the applicant with no current capacity for work from 24 September 2019 to 15 December 2019 and with capacity for some type of work from 16 December 2019 to 27 December 2019 and fit for preinjury work from 27 December 2019. Dr Nicholas noted that “all medication closed 16/12/19… Not allowed to return to work until 20/12/19 to allow medication wash out”.
In his clinical notes, Dr Nicholas on 13 December 2019 recorded that “work referred him to company doctor… Dr Foo – said cannot work until off Neurontin” and on 27 December 2019 he noted that “on advice of Work doctor and boss sought advice from iCare – WorkCover advised over phone to complete forms… Follw throught here with dates etc [sic]”.

Dr Loefler

Dr Loefler, orthopaedic surgeon, provided reports dated 27 July 2004, 27 August 2018, 30 September 2019, 11 November 2019 and 9 December 2019.
In his report dated 27 July 2004, Dr Loefler recorded a history that the applicant was a
44-year-old man who drove a garbage truck. Dr Loefler noted that the applicant stated that he developed sudden back pain last week and had been unable to work and rested at home. Dr Loefler noted that the applicant developed right sided leg pain. Dr Loefler recorded that “he now describes a typical L4 nerve root symptoms which radiate from his buttock into the anterior aspect of his thigh and his shin” and also “numbness of the anteromedial aspect of his leg”. Dr Loefler noted a CT scan of the lumbar spine “which shows a right sided disc lesion at L3/4. There appears to be a sequested fragment which has migrated superiorly”. Dr Loefler was of the opinion that “this man’s history and his physical examination are entirely consistent with an acute right L4 radiculopathy on the basis of the disc prolapse demonstrated on the CT scan”. Dr Loefler was also of the opinion that “although his symptoms are quite severe, I have suggested that he rest at home. A sequested fragment often causes more pain but there is still an excellent chance that he will settle”.
In his report dated 27 August 2018, Dr Loefler noted that “Mr McCall is a 58-year-old truck driver. He has been experiencing bilateral leg pain is especially when walking. At the same time he is still able to perform his duties as a driver and garbage collector.” Dr Loefler noted some tenderness in the lower lumbar spine “especially when palpating the spinous process of L3”. Dr Loefler reviewed an MRI presented by the applicant “which shows a small disc at L4/5 which [is] more prominent on the left. The spinal canal, however, is roomy.” Dr Loefler was of the opinion that “the history of leg pain is not specific” and he suspected that “there may be an element of peripheral neuropathy”. Dr Loefler did not think that surgery was required but the applicant might benefit from review by a neurologist.

In his report dated 30 September 2019, Dr Loefler noted a history that the applicant “now comes with quite severe sciatica down his left leg. This started approximately one week ago. There was no precipitating incident.” Dr Loefler noted on examination that the applicant was in obvious discomfort and had restricted range of motion. Dr Loefler also noted that lumbar extension was “almost non-existent and reproduces his leg pain”. Dr Loefler reviewed a recent MRI “which does show some encroachment on the left L5 nerve root due to a broad and left sided disc lesion. There are also minor changes in the upper lumbar spine.”
Dr Loefler was of the opinion that “the history of left sided leg pain is consistent with an L5 radiculopathy” and recommended a cortisone injection at L5/S1.
In his report of 11 November 2019, Dr Loefler noted that the cortisone injection at the beginning of October did not help. Dr Loefler was reluctant to offer surgery at that stage and suggested a further injection.
In his report of 9 December 2019, Dr Loefler noted that the applicant’s leg pain had improved and he did not at that stage make a further appointment for review.

Dr Poplawski

Dr Poplawski, orthopaedic surgeon, who was qualified by the applicant’s solicitors, provided reports dated 25 May 2020, 22 July 2020 and 3 February 2021.
In his report dated 25 May 2020, Dr Poplawski recorded a history that during the course of the day of 12 March 2018 the applicant was driving his garbage truck on a one man basis as he had been doing since 2005. Dr Poplawski recorded that the truck was jolting and bouncing a great deal, particularly on unsealed surfaces at the Lucas Heights garbage tip on three occasions each day. Dr Poplawski noted that the applicant felt that the suspension in the truck was faulty. Dr Poplawski recorded that the applicant developed lower back pain radiating down both thighs with some paraesthesia, mostly on the left. The applicant sought treatment with his GP and Dr Loefler.
Dr Poplawski noted that the applicant underwent physiotherapy, without benefit, and at one point required two weeks off work as his symptoms persisted and he was referred to Dr Loefler. He noted that Dr Loefler prescribed a left L5 perineural injection which improved symptoms significantly.
Dr Poplawski recorded that the applicant was able to continue with his driving work but on 24 September 2019 he redeveloped low back pain with left sided sciatica while truck driving. The applicant was again referred to Dr Loefler. From that time, Dr Poplawski noted, the applicant had left L5 perineural injections on 3 December 2019, 15 November 2019 and 28 January 2020 with good improvement of symptoms but with incomplete resolution.
Dr Poplawski noted that currently the applicant had difficulty with prolonged sitting and standing and walking more than about a kilometre and had difficulty with stairs and slopes. He noted the applicant currently avoided bending, lifting, pushing and pulling activities as much as possible to avoid aggravating his back.
Dr Poplawski also noted a past medical history including a motor vehicle accident at work in October 1994 resulting in injury to the cervical, lumbar and thoracic spine and shoulders and ribs, from which he recovered well. He also noted lumbar, cervical and shoulder strains in November 1995 while driving an older variety of garbage truck.
Dr Poplawski reviewed investigations, being a CT lumbar spine of 1 May 2018, a MRI lumbar spine of 7 July 2018 and a MRI lumbar spine of 26 September 2019.
Dr Poplawski was of the opinion that
“Mr McCall sustained a work-related cumulative injury to the lumbar spine resulting in low back pain and bilateral sciatica, more marked on the left. Although he has had some time off work as a result of these injuries, he is currently managing to continue his normal duties as a garbage truck driver although with some ongoing symptoms as outlined in the body of my report.”
Dr Poplawski diagnosed “work-related aggravation of lumbar spondylosis with low back pain and bilateral sciatica, more pronounced on the left.”
Dr Poplawski was of the opinion that the applicant’s “employment represents a substantial contributing factor to the aggravation of a condition of pre-existing lumbar spondylosis.”
In a supplementary report dated 22 July 2020, Dr Poplawski noted the previous history that he recorded of truck driving and employment activities on 12 March 2018 and after a period of time off work of about two weeks he returned to his previous work activities. He also noted that the applicant on 24 September 2019 redeveloped low back pain and left sided sciatica while driving his truck at work. Dr Poplawski noted that “in September 2019, his symptoms became aggravated by his garbage truck driving activities and he required time off work until December 2019.” He noted that this was followed by a period of light duties before he was able to return to normal work activities from 27 December 2019.
Dr Poplawski was asked to consider whether or not the nature and conditions of the applicant’s employment from 2005 as a one man garbage truck driver with associated jolting and jarring is the main contributing factor to any aggravation, exacerbation or acceleration of the lumbar spondylosis.
Dr Poplawski referred to correspondence from the applicant’s solicitors requesting the supplementary report, in which the applicant’s solicitors noted that “your report appears to be focused on a single event on 12 March 2018.” Dr Poplawski noted that he had been asked to consider whether the applicant’s employment from 2005 onwards had contributed to his problem. Dr Poplawski noted that the applicant said that he had no significant lower back problems prior to 12 March 2018.
Dr Poplawski provided his opinion in response as follows:
“In my opinion, his low back pain and bilateral sciatica is due to cumulative work-related aggravation of his lumbar spondylosis by the event described above which took place on 12 March 2018 with aggravation of his problem by continuation of his garbage truck driving work activity, particularly on 24 September 2019.
In my opinion, it is more likely than not that the nature and conditions of his employment as a one man garbage truck driver, and the associated jolting and jarring, resulted in a cumulative injury to his lumbar spine starting on 12 March 2018 and continuing thereafter at a lesser level, with further specific aggravation on 24 September 2019.”
In his further supplementary report dated 3 February 2021, Dr Poplawski agreed with the opinion of Dr Edwards that the applicant’s work activities were not responsible for the onset of his lumbar spondylosis changes.
Dr Poplawski was, however, of the opinion that the applicant’s work driving a garbage truck precipitated lower back pain. Dr Poplawski noted that this work involved the applicant sitting for up to 3.5 hours in a truck with faulty suspension, resulting in jarring to his back from the consequent jolting and bouncing, particularly when driving across unsealed surfaces to the Lucas Heights garbage tip. In the opinion of Dr Poplawski “the recurrent and often prolonged jarring trauma to his lower back resulted in aggravation of pre-existing degenerative changes”.
Dr Poplawski recorded that in the further correspondence from the applicant’s solicitors requesting a further supplementary report, it was noted that “in your report of 22 July 2020 you referred to a specific episode occurring on 24 September 2019.”
Dr Poplawski was of the opinion that the event occurring on 24 September 2019 “was in the form of low back pain precipitated by his truck driving activities to the point where his symptoms were severe enough that he required three months off work before being able to return to his regular duties”. Dr Poplawski stated:
“I am of the opinion that Mr McCall’s rubbish truck driving work activities have resulted in aggravation of pre-existing degenerative changes in his lumbar spine, resulting in his having to go off work for three months.”

Dr Edwards

Dr Edwards, surgeon, provided a report to the respondent dated 5 February 2020.
In his report dated 5 February 2020, Dr Edwards noted that the medical file with which he was briefed consisted of the certificate of capacity issued by Dr Nicholas dated 27 December 2019 and “early contact fax received by Dr Nicholas on 15 January 2020”.
Dr Edwards noted a history that relevantly included that on 6 June 1994 the applicant reported constant pain in the right shoulder, elbow, wrist, neck and back and he was off work for these complaints but he did not know how long.
Dr Edwards recorded that on 5 October 1994 the garbage truck which the applicant was driving was hit by a car. Dr Edwards noted that the applicant said “this caused discomfort in his back and shoulders” and after this “he had a ‘nervous breakdown’” and was off work for about six months.
Dr Edwards recorded a history that
“Mr McCall said his current problems date back 16 years - i.e. around 2004. He did not know any dates. He was on his way to work, and was walking to his brother-in-law's house. He said when he got to his brother-in-law's house, ‘my back just went’. He said when he turned around, he was unable to walk. He had pain in his back.”
Dr Edwards noted that he went off work for about three months and had an injection into his lower back with relief of symptoms.
Dr Edwards recorded that “he then had no further problems for about 15 years”.
Dr Edwards noted that
“In 2018, Mr McCall said his back started to get sore again. He did not describe any incident or injury. He said he did not report the matter, but sought his own treatment. He saw his general practitioner, Dr Nicholas. He had physiotherapy.”

Dr Edwards also noted that in 2019 the applicant had two injections on the left at L5/S1 and at L4 in October and November 2019 respectively. Dr Edwards noted another injection in January 2020 on the left at the L5 level, which helped markedly.
Dr Edwards recorded that the applicant “went off work because of his back pain on
24 September 2019, and returned to his usual job on 20 December 2019.”
Dr Edwards also recorded that
“The reason he reported his complaints on this occasion was that he saw a doctor, who told him his symptoms were due to sitting in a truck, bouncing around, and turning from side to side.”
Dr Edwards recorded with respect to current symptoms that the applicant “said his pain is now on the left, affecting the left leg. His initial pain was on the left.” Dr Edwards also noted that “in his right leg, he gets an occasional pain on the anterior aspect of the tibia”. He also noted that sitting causes discomfort and that “his normal shift can last from 6 to 10 hours. He has to drive about an hour to the tip to empty the garbage truck after every 2.5 hours, and is able to get out and walk around while at the garbage tip.”
I note at this point that the preceding paragraph is the extent of the notation by Dr Edwards of the applicant’s work duties in the history that he has recorded, other than the general description of “garbage truck driver” which “changed to one man operations in about 1995”. In his opinion (as distinct from the history) Dr Edwards also noted that the applicant has to drive the truck and also operate a small robotic arm and “he gets out of the truck approximately every 3½ hours to walk around while the truck is being emptied at the tip”.
Dr Edwards also noted with respect to current symptoms that the applicant “said he does get some back discomfort, but it is minor compared to his left leg pain when it occurs”.
On examination, Dr Edwards noted there was “no tenderness in the lower lumbar spine and no muscle spasm”. He also noted “forward flexion was to below his knees without complaint” and “extension, lateral flexion and lateral rotation were full range and pain free”.
Dr Edwards reviewed investigations brought by the applicant to the examination. These were a CT lumbar spine of 1 May 2018, MRI lumbar spine of 7 July 2018 and MRI lumbar spine of 26 September 2019.
In his opinion, Dr Edwards stated “there is no history of any injury” and that the applicant had “a history of intermittent episodes of leg pain for many years” that “started some 16 years ago” with relief by an injection and “he said he had no problems for about 15 years”.
Dr Edwards also noted that in about March 2018 the applicant “reported further discomfort” and “there was no incident or injury”.
Dr Edwards was of the opinion that the applicant “has not suffered any injury at work” and “his symptoms are due to the underlying degenerative changes in his lumbar spine” as reported on MRI.
Dr Edwards also was of the opinion that
“Mr McCall’s complaints of leg pain cannot properly be said to have any connection to any alleged incident on 12 March 2018 or to his employment generally. He did not describe any incident.”

Dr Edwards was of the opinion that
“Mr McCall’s employment at 12 March 2018 cannot reasonably be said to be a substantial contributing factor to any injury. Mr McCall drives a single operator garbage truck. He has to drive the truck, and also operate a small robotic arm. He gets out of the truck approximately every 3½ hours to walk around while the truck is being emptied at the tip”.
As to the question of a disease process, Dr Edwards was of the opinion that
“I would consider the medical condition from which Mr McCall suffers is a disease process. His complaints are due to underlying degenerative changes in the lumbar spine. These are age related. I do not consider Mr McCall's employment could be said to be the main contributing factor to the cause or aggravation of such a disease.”

Findings and reasons

The applicant’s statement was that from about 2004 onwards he drove a one man garbage truck and that the suspension of the tracks that he has driven over the years has not been good so that he was constantly jarred and jolted. He also described constantly twisting turning and climbing in and out of the vehicle regularly. He also described emptying the truck three times per day at the Lucas Heights tip, where he was jolted and jarred more heavily. He described how he noticed symptoms in his lower back and left leg in the lead up to March 2018 and he consulted his GP Dr Nicholas. He described how after treatment and time off work his condition did not completely settle and became worse again particularly through the middle part of 2019 until he was unable to continue at work from 24 September 2019.
Dr Nicholas in his report of 4 March 2020 noted a history on 12 March 2018 of lower back pain radiating to the right hip and symptoms down both legs to the knees. He noted that on 24 September 2019 the history was of severe lower back pain and left leg pain. Dr Poplawski in his report of 25 May 2020 took a history that on 12 March 2018 the applicant developed lower back pain with symptoms down both thighs and subsequent paraesthesia in these areas mostly on the left. Dr Poplawski noted that on 24 September 2019 there was a redevelopment of low back pain with left sided sciatica. The applicant in his statement of 20 August 2020 described the pain in the lead up to March 2018 in the lower back and pain in both legs to below his knees with pain in his left leg to his toe. He recalled gradual worsening at above until 24 December 2019. To the extent that there was a lack of clarity from the applicant his statement as to the left leg symptoms on 24 September 2019, I accept the contemporaneous notes and report of Dr Nicholas and the history recorded by Dr Poplawski in this regard.
In my view, the history provided by the applicant in his statement is broadly consistent with the history recorded by Dr Nicholas in his medical certificate of 27 December 2019 and his report of 4 March 2020, and also with the reports of Dr Poplawski dated 25 May 2020, 22 July 2020 and 3 February 2021, as will be discussed below. I accept the statements of the applicant that have been provided in this matter.
The respondent submitted that while the applicant relies on a deemed date of injury of 24 September 2019, that date was not the first date of incapacity for the injury claimed. The respondent pointed to the applicant’s statement in which it was stated that he was involved in the motor accident whilst driving a garbage truck in 1994 and he had a number of months off work following that accident. There was also the history recorded by Dr Poplawski of the motor vehicle accident in October 1994 in which the applicant sustained injury relevantly to the lumbar spine.
The respondent submitted that with the above history the deemed date of injury is the first period of incapacity, being an injury deemed to be in 1994. The respondent submitted that the problem for the applicant is that the respondent was not a self insurer in 1994, as it became a self insurer only after 1996.
The applicant submitted that, following decisions such as Stone v Stannard Brothers Launch Services Pty. Ltd.[1] (Stone) and Alto Ford Pty Limited v Antaw [2] (Alto Ford), there may be more than one deemed date of injury for aggravations of a disease process after further periods of employment and further periods of incapacity.
[1] [2004] NSWCA 277.
[2] [1999] NSWCA 234.
I do not accept the submissions of the respondent in this regard. In my view, the submissions are misconceived at the level of first principles.
Just as sections 15 and 16 of the Workers Compensation Act 1987 (the 1987 Act) do not provide for the determination of injury, section 4 does, neither section 15 or section 16 provide for the determination of injury for the purposes of a claim for later weekly compensation where there is a purported further aggravation arising from the worker’s employment duties. This was discussed and the relevant authorities reviewed in the decision of Collingridge v IAMA Agribusiness Pty Ltd[3] (Collingridge) where it was observed that:
[3] [2011] NSWWCCPD 31 at [66]-[67].

“66. The Commission determines whether a worker has received ‘an injury’ by applying s 4, not s 15 or s 16. Mahoney AP explained this point in Crisp. In that case, it was submitted that the worker’s case had been pressed on two alternative bases: ‘the section 15 basis and the section 16 basis’. In response to that submission, his Honour said (at 495):

‘It is, I think, a confusion to treat section 15 or section 16 of the 1987 Act as, in the sense here relevant, creating liability for compensation. In general, each of the sections assumes that an injury has occurred and each provides the means of determining when the injury is deemed to have happened, by whom compensation is payable, and other ancillary matters. In principle, it remains for the worker to prove that an injury has occurred and accordingly that section 9(1) had been satisfied. To prove that, it is necessary for the worker to prove the ‘happening’ of an injury within section 4. However, section 15 applies essentially in the case of an injury of the second kind to which I have referred [a work-caused disease] and section 16 to an injury of the third kind [a work-aggravated disease]. It is, therefore, no doubt convenient to refer to injuries of those kinds as cases within section 15 and section 16 respectively. However it is necessary in doing so to recall that essentially the injuries are those provided for in section 4.’

67. This passage is consistent with the statement by Hodgson JA (Ipp JA and Hoeben J agreeing) in Gales v Lovett, McCracken & Bray [2008] NSWCA 171 (Gales) at [31] that ‘Antaw does not support a proposition that s 15 (1)(b) can in effect create an injury, simply by deeming an injury to have occurred on a particular date’. It is also consistent with Powell JA’s statement in Kelly, where his Honour said at 187G:

‘While it may be that to describe a claim which is authorised by the combined operation of sections 4 (“injury” – (b)(i)), 15 and 33 of the Act is a convenient form of legal shorthand, it seems to me that, if that be done uncritically, and without regard to the fact that the source of the relevant worker’s entitlement is to be found in the combined operation of sections 4 and 33 – section 15 being procedural, or evidentiary in nature, identifying, for the purposes of a claim, the time at which the incapacity is to be taken as having arisen, and the employer against whom the claim may be made – one is apt to be led into confusion of thought.’”

There may have been some force to the respondent’s submissions if there had been no period of employment after 1994 which could be said to have aggravated a disease process. However, that is not the applicant’s case. This is distinct from Collingridge where there was no further period of work in employment to the nature of which the disease was due, or an aggravation to which employment was a substantial contributing factor.[4]
[4] at [44].
The applicant referred to Stone and Alto Ford as authorities for the proposition that section 16 may fix different deemed dates of injury. It seems that this was a reference to the decision of Handley JA in Stone[5], who stated that:
“Even if s 16(1)(a)(i) was capable of operating in this case to fix a date for the worker’s incapacity injury we should nevertheless follow the Alto Ford case where this Court specifically held that s 16(1) could fix different dates for incapacity and impairment injuries and, in the latter case the relevant date was the date of the claim.”
[5] at [10].
It was also stated in Stone by Hodgson JA[6] (Mason P agreeing) that:
“Berkeley Challenge shows that, if the claim under consideration is for weekly compensation based on incapacity, the relevant incapacity for the purposes of s.16(1)(a)(i) is incapacity giving rise to entitlement to weekly compensation. Thus, in such a case, incapacity first occurs when the physical incapacity results in some loss of wages, even if there had previously been incapacity in the Arnotts sense, not resulting in any loss of wages.”
[6] at [37].

While it might be said that the decision of Hodgson JA in Stone related to the question of different dates deemed for the differing purposes of incapacity and impairment, in my view it also shows that what must be considered is the time when physical incapacity results in some loss of wages, and whether such incapacity occurs after employment has aggravated the underlying disease condition. The first step then is to consider whether there has been injury, being an aggravation of an underlying disease, including whether there has been a further aggravation as a result of further employment.
The steps to be taken were outlined in StateCover Mutual Ltd v Cameron[7] , with respect to a section 15 matter, in which it was observed that:
“The Act deals with matters in steps. The first step requires that the worker establish that he or she has received an injury, within the meaning of s 4. That will include proving that the injury, in the case of a disease injury, is contracted in the course of employment and that the employment was the main contributing factor. Section 15 presumes that an injury has been established and, in the case of a disease contracted by a gradual process, identifies a point in time at which it is deemed to have happened and the employer who is liable to pay compensation…”
[7] [2015] NSWCA 127 at [18].

The evidence before me as to the nature of injury to the applicant’s back in 1994 included the report of Dr Nicholas which noted that the applicant relevantly sustained a “lumbar strain”, without giving further details. There was a report of Dr Pickering, psychiatrist, dated 17 January 1995, with respect to PTSD and noting among other things back pain. This report is dealt with below. The applicant’s evidence was that he was off work mainly for psychological reasons and he did not recall suffering much, if any, ongoing pain in his lower back after that injury. It was noted by Dr Bodel that he recovered well from injuries sustained in that accident, including the lumbar spine.
There were submissions from the parties in relation to the report of Dr Pickering, treating psychiatrist, of 17 January 1995. This report diagnosed post-traumatic stress disorder following a motor vehicle accident on 5 October 1994, together with physical problems with pain in the neck, shoulders and lower back. The submissions from the respondent related to the argument that the deemed date of incapacity was in 1994, in a period in which the respondent was insured by another insurer. As I have not accepted the respondent’s argument as to this earlier date of injury, this report is not otherwise relevant.
Turning to the issue of injury, the respondent submitted that the applicant initially alleged injury arising from an event on 12 March 2018, which was not an allegation of a disease or injury arising from the nature and conditions of employment. This was the history that was recorded in the report of Dr Poplawski of 25 May 2020, it was submitted by the respondent. The subsequent supplementary reports of Dr Poplawski were unsuccessful efforts by the applicant’s solicitors to remedy the original history given to Dr Poplawski, it was submitted. There was not a fair climate for Dr Poplawski to reach his opinion. It was submitted that no weight should be given to his opinion based on the confused history and the lack of explanation of the assumptions and reasoning upon which his opinion was based.
The characterisation of the history of injury as “an event” on 12 March 2018 as recorded by Dr Poplawski is in my view erroneous.
This characterisation commenced with the applicant’s solicitors in their correspondence with Dr Poplawski which resulted in his supplementary report of 22 July 2020. In that supplementary report, Dr Poplawski recorded that the applicant’s solicitors in their correspondence to him wrote “we note your report appears to be focused on a single event on 12 March 2018”.
However, the reference to a “single event on 12 March 2018” is in my view an incorrect summary of the history recorded by Dr Poplawski. That error arose from the conflation of the concept of a single “date of injury” on 12 March 2018, as recorded by Dr Poplawski, with that of a “single event” on 12 March 2018. Dr Poplawski recorded that the jolting and bouncing of the truck that was driven by the applicant took place during the course of the day on 18 March 2018 and the applicant developed lower back pain radiating down both thighs. In my view, this is a description of multiple instances of jolting and bouncing in the truck during the course of the day of 12 March 2018, rather than a single event or instance of a jolt or bounce resulting in lower back pain.
This characterisation of the history taken by Dr Poplawski as “an event” on 12 March 2018 was continued in the respondent’s submissions.
I do not accept the characterisation of the history recorded by Dr Poplawski in his report of 25 May 2020 as “an event” or as “a single event”. In my view, the history recorded by Dr Poplawski in his report of 25 May 2020 was that of the development of lower back pain on 12 March 2018 following the applicant driving a truck in which during the course of the day the truck was jolting and bouncing a great deal, particularly over unsealed surfaces at the Lucas Heights garbage tip.
This, in my view, is consistent with the applicant’s claim, that he sustained injury, being an aggravation of a disease, as a result of the nature and conditions of his employment, including jolting and jarring of the truck. It is also not inconsistent with the histories noted by Dr Nicholas and Dr Loefler that there was no precipitating incident, although no history was recorded by either treating doctor of any work-related factors in treatment consultations between March 2018 and December 2019.
The report of Dr Poplawski was attacked by the respondent on the basis that there was not a fair climate for Dr Poplawski to reach his opinion and that Dr Poplawski had not met the requirements of Makita (Australia) Pty Ltd v Sprowles[8] (Makita).
[8] [2001] NSWCA 305.
As noted above, the history recorded by Dr Poplawski in his report of 25 May 2020 was not of a specific event, rather it was a history of garbage truck driving duties involving a great deal of jolting and bouncing in the truck which was first noted on 12 March 2018 in the context of the development of lower back pain. In the same report, Dr Poplawski also recorded the history that the applicant at that time underwent treatment and had two weeks off work at one point and “as his symptoms persisted, he was referred to see Dr Andreas Loefler, spinal surgeon, whom he saw in August 2018”. Dr Poplawski also recorded that the applicant was “able to continue on with his driving occupation but on 24 September 2019 he redeveloped low back pain with left sided sciatica while truck driving and was referred to Dr Loefler again”. In my view, this history is consistent with the applicant’s claim that he sustained an aggravation of a pre-existing disease as a result of his truck driving duties, particularly the jolting and jarring within the truck as he was driving, in the period from 18 March 2018 to 24 September 2019. Indeed, Dr Poplawski was of the opinion in the same report that the applicant “sustained a work-related cumulative injury to the lumbar spine resulting in low back pain and bilateral sciatica, more marked on the left”. In my view, this opinion is consistent with the history recorded.
Of significance to this history, in my view, are the investigations noted by Dr Poplawski in his report of 25 May 2020. These were investigations dated 1 May 2018, CT lumbar spine, 7 July 2018, MRI scan lumbar spine, and 26 September 2019, MRI scan lumbar spine. In my view, these reports provide the historical foundation for the history of significant symptoms commencing on 18 March 2018, with further treatment and investigations and a further increase in symptoms on 24 September 2019. These investigations are also of course the foundation upon which Dr Poplawski provided his expert opinion as to the nature of the applicant’s injury.
Dr Poplawski did not take a history of lumbar spine pain in about 2004 as noted in the reports of Dr Nicholas and Dr Edwards. However, this is not significant in my view in the context of the evidence that the applicant had no further problems and was able to continue with his normal duties until March 2018 and also in the context of the opinion of Dr Poplawski that the applicant’s employment duties from 18 March 2018 until 24 September 2019 aggravated an underlying lumbar spondylosis condition.
Notwithstanding the inaccurate characterisation of Dr Poplawski’s history and opinion as noted above, Dr Poplawski in his report of 22 July 2020 provided in my view a consistent opinion and elaboration in response. He noted that the applicant mentioned no particular problems in his lower back from 2005 until 12 March 2018 (“the date of injury”). This is also consistent with his previous report in which Dr Poplawski noted and considered a past history of lower back pain in 1995 from driving an older version of garbage truck, and a motor vehicle accident in 1994 from which the applicant recovered well.
I note at this point that Dr Nicholas noted specific instances of lower back pain on 25 November 2013 and 26 November 2015 but there is no evidence to suggest these instances were of any significance.
Dr Poplawski in his supplementary report of 22 July 2020 continued by noting the history that he had taken in his previous report. Dr Poplawski considered whether or not the applicant’s employment from 2005 onwards had contributed to his problem, but concluded that it was his opinion that the applicant’s low back pain and bilateral sciatica was “due to cumulative work-related aggravation of his lumbar spondylosis by the event described above which took place on 12 March 2018 with aggravation of his problem by continuation of his garbage truck driving work activity, particularly on 24 September 2019”. In my view, the reference by Dr Poplawski to an “event” on 12 March 2018 in the preceding quote was a reference to the garbage truck driving duties involving the jolting and jarring in the truck that he had recorded previously. Indeed, this is confirmed in his concluding opinion in the same report in which he stated that
“it is more likely than not that the nature and conditions of his employment as a one-man garbage truck driver, and the associated jolting and jarring, resulted in a cumulative injury to his lumbar spine starting on 12 March 2018 and continuing thereafter at a lesser level, with further specific aggravation on 24 September 2019”.

In relation to the reports and medical certificate of Dr Nicholas, the respondent submitted that his opinion as to causation in his reports of 4 March 2020 and 15 January 2021 could not be accepted as there was no reference to the applicant’s specific work duties and a reliance on footnoted studies or articles without providing a copy or saying how such studies applied to the applicant. The respondent also submitted that the medical certificate of 27 December 2019 should not be accepted as it relied upon a date of injury of 12 March 2018, which was not the injury relied upon in these proceedings and was in any event inaccurate and could not refer to a further injury of 24 September 2019.
I do not place weight on the reference by Dr Nicholas in his report of 15 January 2021 in respect of the footnoted studies or articles.
However, in my view Dr Nicholas’s reports and medical certificate are significant and have weight in respect of other matters. His report of 4 March 2020 confirms that there was no history of significant back problems between 2004 and 12 March 2018. The same report also noted that following the consultation on 12 March 2018 the applicant’s symptoms “gradually settled to a tolerable level” with a few weeks off work, followed by the consultation on 24 September 2019 in which the applicant presented with severe back pain. Dr Nicholas was of the opinion that the applicant was currently fit to do his normal job as a garbage truck operator “providing his truck seat, suspension and ergonomics are suitable for him”.
As submitted by the applicant, the medical certificate of Dr Nicholas dated 27 December 2019 did not refer to a date of injury. Dr Nicholas certified that the applicant was first seen for this injury on 12 March 2018. In my view, Dr Nicholas in this certificate also described the lumbar disc injuries in 2018 at L3/4 and in 2019 at L4/5/S1 as a gradual injury. He stated that the lumbar injury was related to work by “continuous impact from driving heavy vehicle at work (34 years)”. The pre-existing factors to which he referred in the certificate were in fact work-related, being “multiple episodes of back pain at work especially at rubbish tip”.
The report of Dr Loefler of 27 August 2018 referred to the applicant’s occupation as a truck driver but recorded only that the history of leg pain was not specific. Dr Loefler did not take a history of the onset of the symptoms, rather he noted the activity of walking when the applicant was experiencing the leg pains. The report of 30 September 2019 by Dr Loefler noted that there was no precipitating incident. Dr Loefler noted only that the quite severe left leg sciatica started about one week previously.
In my view, the history recorded by Dr Loefler is restricted to an enquiry as to whether there was a precipitating incident. As noted above, I do not accept that the characterisation of the jolting and jarring in the course of driving a truck on 12 March 2018 and thereafter as an “event”, nor do I accept that this was an “incident”. For the same reason, I do not accept that the jolting and jarring in the course of driving a truck on 12 March 2018 and thereafter was an “incident” in the sense noted by Dr Nicholas in his report of 4 March 2020, that “there was no precipitating incident”.
The respondent submitted that there was no report before the Commission from Dr Loefler in response to a letter from the applicant’s solicitors dated 12 January 2021, in which he was asked to provide his opinion as to contribution of employment to the aggravation of the degenerative condition of the applicant’s spine, having regard to the applicant’s statements dated 20 August 2020 and 27 November 2020. The respondent submitted that it should be found that the opinion of Dr Loefler in this regard does not assist the applicant. The applicant submitted that the report of Dr Loefler had not been received and no finding could be made in this regard. I accept the applicant’s submission on the basis that the report has not been received. It is speculative in my view to infer that that the opinion of Dr Loefler would not have assisted the applicant in these circumstances and I decline to make the inference.
In my view, the enquiry undertaken by Dr Loefler was limited to that of a precipitating event for the purposes of diagnosis and treatment. In this case, where the applicant’s injury is said to be an aggravation of an underlying degenerative condition, in my view there should be no significance attached to the absence of a history of employment duties in Dr Loefler’s report. This, in my view, accords with the cautious approach outlined by Basten JA in Mason v Demasi[9] , which noted a number of reasons for caution, relevantly including the absence of identification of questions which may have elucidated replies, and also the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise of these proceedings.
[9] [2009] NSWCA 227 at [2].
The respondent also submitted that a treating report of Dr Griffith, consultant neurologist, dated 26 October 2018 referred only to a history of chronic long standing back pain, with no reference to employment in 2018. In my view, this report was of a history of back pain 15 years previously but after a lumbar injection he had a dramatic improvement and was left with only occasionally niggling low back pain. There was no reference to employment duties in 2018. However, in my view this history does not in substance differ from that of Dr Loefler and this report should be weighed in the context of the applicant continuing with his employment duties until the further aggravation on 24 September 2019.
It was the applicant’s evidence in his statement of 20 August 2020 that it was “in the lead up to March 2018” that he became aware of similar symptoms in his lower back and left leg to those which he experienced in 2004. This in my view is a somewhat indeterminate period which does not suggest a lengthy period nor does it suggest the onset of significant symptoms prior to 12 March 2018. The referral letter of Dr Nicholas dated 24 August 2018 to Dr Loefler provided a history of a recent increase in leg pain and also a background of “back pain – 15 years”, which in my view is a broad background without further explanation and not inconsistent with the applicant’s statement. In my view, the applicant’s statement in this regard is also not inconsistent with the history recorded by Dr Poplawski.
The applicant also stated in his supplementary statement that his employer sent him to the “work doctor”, Dr Foo, whom he saw on 11 December 2019. The applicant said that Dr Foo agreed in that consultation with the applicant that his driving conditions were a factor in the applicant’s back problem and that a better quality driving seat would help. The clinical notes of Dr Nicholas of 13 December 2019 and 27 December 2019 note the history given by the applicant of a referral to Dr Foo, the company doctor and the “advice of Work doctor and boss” to seek advice from iCare and it was at that time that the claim was commenced the claim with the medical certificate of Dr Nicholas.
The applicant submitted that there is no report or evidence from Dr Foo in evidence without explanation from the respondent and the inference should be made that the evidence or report of Dr Foo would not have assisted the respondent. I note that no explanation was forthcoming from the respondent in this regard. I accept that the applicant was required by the respondent to be examined by Dr Foo for the purpose of returning to work and that the applicant did so consult with Dr Foo on or about 11 December 2019. The respondent submitted that Dr Foo was not in the employ of the respondent and the applicant could have asked for his opinion. I do not accept this submission. It is usually the case that in this jurisdiction that an examining doctor in these circumstances is not in the employ the respondent. I infer that the report or evidence of Dr Foo would not have assisted the respondent’s case[10].
[10] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

The applicant’s evidence as to his driving duties, including twisting and turning and also the jolting and jarring within the vehicle, more significantly on 12 March 2018 and continuing thereafter, following a period of time off work, until a further significant aggravation from those duties on 24 September 2019, is in my view credible and should be accepted. I accept the applicant’s evidence in this regard.
The respondent sought to rely upon the Makita “test” as part of its submission that there was not a fair climate for Dr Poplawski to provide his opinion. However, what is required is for the Commission to be satisfied that the report of Dr Poplawski conforms in a sufficiently satisfactory way with the usual requirements for expert evidence[11]. As observed in STA of NSW v El-Achi[12], with reference to Hancock,
“All that is required for satisfactory compliance with the principles governing expert evidence is for the expert’s report to set out ‘the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests’”.

[11] Hancock v East Coast Timber Products Pty Ltd (Hancock) at [82].
[12] [2015] NSWWCCPD 71.
I am satisfied that Dr Poplawski set out the facts observed, the assumed facts including those garnered from the applicant and from investigation reports.
In my view, there was a fair climate[13] for Dr Poplawski to provide his opinion in his reports of 25 May 2020, 22 July 2020 and 3 February 2021. The history taken from the applicant and considered by Dr Poplawski was one of work duties on 12 March 2018, particularly the jolting and jarring while driving the truck, with continuation of those work duties until the worsening on 24 September 2019 while doing those same work duties. That fair climate also included the prior history of the applicant performing his normal work duties driving the one man garbage truck from 2004 and then from 12 March 2018 the applicant experienced significant back pain resulting in medical treatment and investigations arranged by Dr Nicholas and Dr Loefler. The medical certificate of Dr Nicholas of 27 December 2019 recorded an injury to the lower back of gradual onset related to continuous impact from driving a heavy vehicle at work and multiple episodes of back pain at work with an initial consultation on 12 March 2018.
[13] Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland Constructions) Pty Ltd [1985] HCA 58; (1985) 62 ALR 85).
A second aspect of the absence of a report from Dr Foo is a consideration as to whether an unfavourable inference may be drawn with greater confidence against the respondent in respect of whether the applicant’s employment duties over time from 12 March 2018 to 24 September 2019 were a factor for Dr Poplawski to consider in circumstances where the respondent has argued that there was a change in Dr Poplawski’s opinion in his supplementary reports which was not based on his view that an event on 12 March 2018 resulted in injury to the applicant’s lower back. In Manly Council v Byrne[14] it was observed that
“Thus, if a witness is not called two different types of result might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn.”
[14] [2004] NSWCA 123 at [51] per Campbell JA, Beazley and Pearlman JJA agreeing.
In the absence of a report from Dr Foo, I infer that the applicant’s employment duties, including jolting and jarring while driving the truck, were a matter for Dr Poplawski to consider as part of a fair climate for Dr Poplawski to provide his opinion, particularly in his supplementary reports. The applicant’s evidence was that he discussed his employment duties with Dr Foo on 11 December 2019 in the context of his injury and time off work. This in my view supports an inference that there was contemporaneous consideration by the applicant of his employment duties over time while he was off work in December 2019 and that such duties were considered by Dr Foo, in the context of injury to the lower back and capacity for work. The respondent submitted that this was hearsay evidence from the applicant and should not be considered or should be given no weight. I do not accept this submission, to the extent that the applicant in my view discussed his employment duties with Dr Foo in the context of his fitness to return to work and employment duties on return to work, at the request of the respondent, and also with respect to the applicant’s understanding from the discussion with Dr Foo that his employment duties may have been a factor in his condition.
Dr Poplawski in his original report of 25 May 2020 referred to the jolting and bouncing taking place during the course of the day on 12 March 2018, but did not specifically refer to such jolting and bouncing with reference to the applicant’s continuation of driving thereafter and on 24 September 2019. In his supplementary report of 22 July 2020, Dr Poplawski noted that he had been asked by the applicant’s solicitors to consider the jolting and jarring as part of the applicant’s duties from 2005 onwards. In his report of 22 July 2020 Dr Poplawski opined that the nature and conditions of the applicant’s employment and associated jolting and jarring resulted in a cumulative injury to the lumbar spine commencing on 12 March 2018 and continuing thereafter at a lesser level with further specific aggravation on 24 September 2019.
In my view, the lack of specific reference to “jolting and bouncing” in the applicant’s employment duties after 12 March 2018 in Dr Poplawski’s report of 22 May 2020 did not result in the lack of a fair climate for his supplementary reports of 22 July 2020 and 3 February 2021. In my view, reading his report of 25 May 2020 as a whole, Dr Poplawski had recorded a history that on 12 March 2018 he had been driving his garbage truck as he had done since 2005 and during the course of the day the truck was jolting and bouncing a great deal. In my view, this is a description of continuing employment duties from 2005 involving driving the one man garbage truck with such duties including jolting and bouncing, and a continuation of such duties including jolting and bouncing thereafter until 24 September 2019. In any event, as observed by the High Court in Paric[15],
“It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence (Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642). But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence ... to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense.”

[15] At 846.
In my view, the history recorded by Dr Poplawski in his report of 22 May 2020 is sufficiently like the applicant’s statements in evidence in this matter and the medical certificate of Dr Nicholas dated 27 December 2019 and report of 4 March 2020 to render the opinion of Dr Poplawski in his reports to be of value in determining this matter.
The report of Dr Edwards, in my view, did not consider the applicant’s case of an aggravation of an underlying pre-existing degenerative condition. Dr Edwards noted that he studied the medical certificate of Dr Nicholas dated 27 December 2019 in which an injury of gradual onset as a result of driving duties was certified. Dr Edwards did not take a history of the applicant’s driving duties. Dr Edwards noted that the applicant had no further problems with his lower back after around 2004 for a period of about 15 years until 2018 when the applicant’s back started to get sore again. Dr Edwards noted that the applicant did not describe any incident or injury. Dr Edwards recorded only that the applicant had been employed by the respondent for 35 years, working as a garbage collector, and that this had changed to one man operations in about 1995. Dr Edwards was of the opinion that the applicant had not suffered an injury at work and that his symptoms were due to underlying lumbar degenerative changes as reported on MRI.
I prefer the opinion of Dr Poplawski to that of Dr Edwards. In my view, Dr Edwards did not consider the effect of the applicant’s employment duties in driving the garbage truck, particularly jolting and jarring, on the applicant’s underlying condition. Dr Edwards did not consider the issue of an aggravation of a disease process. While Dr Edwards did note that the applicant was told by a doctor that his symptoms were due to sitting in a truck, bouncing around and turning from side to side, this observation was made by Dr Edwards in the context of the reason for the applicant reporting his complaints following the commencement of his time off work on 24 September 2019. Dr Edwards noted that the applicant drove a single operator garbage truck and operated a small robotic arm and he had to get out of the truck about every 3 ½ hours to walk around while the truck was being emptied at the tip. Dr Edwards in his opinion did not refer to jolting and jarring while driving the truck that the applicant had not sustained any injury at work either on 12 March 2018 or generally. He also did not refer to jolting and jarring when opined that employment at 12 March 2018 was not a substantial contributing factor to the injury.
In my view, the reference by Dr Edwards to employment at 12 March 2018 was an incorrect reading of the certificate of Dr Nicholas of 27 December 2019, as studied by Dr Edwards, when that certificate noted only that the applicant had first been seen at the practice of Dr Nicholas on 12 March 2018 in relation to the injury and that the stated date of injury was in fact “gradual”. In my view, Dr Edwards incorrectly directed his enquiry to an injury on 12 March 2018 when he considered the issue of whether employment was a substantial contributing factor to injury. As to his opinion in relation to the aggravation of a disease process, Dr Edwards in my view did not consider the effect of the jolting and jarring whilst driving, as his reference to bouncing around in the truck was not made in the context of a consideration of injury, as noted above.
I find that the applicant has a condition of pre-existing lumbar spondylosis. Dr Poplawski and Dr Edwards were in agreement that the applicant has an underlying condition of lumbar spondylosis.
I accept the opinion of Dr Poplawski that the nature and conditions of the applicant’s employment as a one man garbage truck driver, and the associated jolting and jarring, resulted in a cumulative injury to the lumbar spine starting on 12 March 2018 and continuing thereafter at a lesser level with further specific aggravation on 24 September 2019. I find on the balance of probabilities that the applicant sustained an aggravation of the underlying lumbar spondylosis as a result of the nature and conditions of the applicant’s employment and the associated jolting and jarring in the truck from 12 March 2018 to 24 September 2019.
The test of “main contributing factor” should be decided on the evidence overall and is not purely a medical question. It involves a broad evaluative consideration of potential competing causative factors[16]. The opinion of Dr Poplawski was that the applicant’s employment with the respondent was a substantial contributing factor to the aggravation of the pre-existing lumbar spondylosis. Dr Poplawski did not provide his opinion in relation to whether employment was the main contributing factor to the aggravation of the underlying lumbar spondylosis.
[16] AV v AW [2020] NSWWCCPD 9 at 70, reviewing (at [71]-[72]) decisions including State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71.
In my view, there are no competing causative factors in relation to the aggravation of the underlying condition of lumbar spondylosis. The evidence is that from about 2004 the applicant had no significant problems with his lower back and was able to continue with his normal duties until March 2018. There were also no competing causative factors in the period until 24 September 2019. I accept Dr Poplawski’s opinion that the applicant’s employment was a substantial contributing factor to the aggravation of the underlying condition of lumbar spondylosis. Accordingly, I find that the applicant’s employment with the respondent was the main contributing factor to the aggravation of his underlying condition of lumbar spondylosis.
I find that the applicant sustained injury within the meaning of section 4(b)(ii) of the 1987 Act, being an aggravation in the course of the applicant’s employment from 12 March 2018 to 24 September 2019 of the underlying condition of lumbar spondylosis.
I find that the first date of incapacity resulting from this injury was 24 September 2019.
Pursuant to section 16(1)(a)(i) of the 1987 Act, the injury is deemed to have happened on 24 September 2019.
As to capacity for work, the respondent submitted that the medical certificate, or certificate of capacity, of Dr Nicholas of 27 December 2019 postdates the claim for weekly compensation and should be treated with caution. The respondent submitted that this was a certificate retrospectively given for a period when Dr Nicholas had not seen the applicant for capacity for work. It was submitted by the respondent that there was no other contemporaneous evidence for the subject period.
I do not accept the respondent’s submissions in this regard. The clinical notes of Dr Nicholas indicate an attendance on 24 September 2019 with a notation of symptoms at L4/5 and findings on examination including knee jerks, foot power, weight bearing and “SLR” which I take to be a reference to straight leg raising. That notation included a note stating “resume neurontin” and “no work this week”. Similarly, a clinical note of 26 September 2019 recorded “not improving… left leg pain increasing” and spasms and referral for an MRI and to Dr Loefler. Clinical notes in October and November 2019 noted prescription of medication including Neurontin, Valium and Mersyndol, nerve root injection and cortisone injection and also the issue of sickness medical certificates. Sickness medical certificates were also noted as being issued in December 2019. I could ascertain no reason for the sickness medical certificates other than the applicant’s lower back injury.
I accept the applicant’s evidence in this regard. I also accept the medical certificate, that is the certificate of capacity of Dr Nicholas dated 27 December 2019. I accept the report of Dr Nicholas dated 15 January 2021 that the applicant was unfit for work due to his employment induced back condition from 24 December 2019 to 15 December 2019 and that from 16 December 2019 until 27 December 2019 the applicant was certified to have some capacity for work. However, as noted in the certificate of capacity of Dr Nicholas dated 27 December 2019, the applicant ceased medication on 16 December 2019 but was not allowed to return to work until 20 December 2019 to allow the medication to wash out. In this period the applicant said he took a combination of sick leave and long service leave. Dr Poplawski was of the opinion that the applicant’s symptoms were severe enough that he required three months off work before being able to return to his regular duties.
In my view, the certificate of Dr Nicholas of 27 March 2019 was a more accurate summary and certification of the applicant’s capacity, namely no capacity for work from 24 September 2019 to 15 December 2019 and thereafter not being permitted to return to work until 20 December 2019 to allow the washout of medication. This in my view is evidence that the applicant had no capacity for work in the period until 20 December 19. In my view, the applicant was not able to return to his preinjury duties prior to 20 December 2019.
I find that the applicant had no current capacity for work for the period 24 September 2019 to 20 December 2019 as a result of the aggravation of his pre-existing lumbar spondylosis as a result of his employment from 12 March 2018 to 24 September 2019.
I note that there was no dispute that the applicant’s preinjury average weekly earnings were greater than the maximum weekly compensation amounts pursuant to section 34 of the 1987 Act should the applicant be found to have had no current capacity for work in the applicable period. The relevant maximum weekly compensation amount until 30 September 2019 was $2,177.40 per week and from 1 October 2019 to 20 December 2019 it was $2,195.70 per week. However there was no agreement as to the amount of preinjury average weekly earnings. The applicant alleged that it was $3,000. There was no evidence or wage schedule from the respondent as to the amount that it said it was preinjury average weekly earnings.
I calculate the amount pursuant to section 36(1) of the 1987 Act to be 95% of $3,000, being $2,850. The amount of weekly payments will therefore be at the relevant maximum weekly compensation rate pursuant to section 34 of the 1987 Act.
The applicant also claimed pursuant to section 60 medical, hospital or related expenses. A general order pursuant to section 60 is appropriate.

[2021] NSWPIC 242

14 July 2021